You'd think after a year of this, people would be better at it.
Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a...
Kathryn Rubino is a member of the editorial staff at Above the Law. She has a degree...
Joe and Kathryn discuss the latest legal Zoom fail as a defendant flirts with contempt after his sister changed his Zoom moniker to some sort of sci-fi sex machine. The pair also talk about Ropes & Gray’s decision to transition to a four-day office work week and the latest insulting, dubious rant from the National Conference of Bar Examiners declaring that poor test results for minority applicants is… probably because minorities aren’t cut out to be lawyers in the first place. Yikes!
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Kathryn Rubino: Hello.
Joe Patrice: Greetings and salutations was what I meant to say. I got hijacked there. You’re so eager to start the show. Why don’t you start it?
Kathryn Rubino: I just say hello is what I say.
Joe Patrice: Yeah, I know, then that means you now own the intro. See if you can do it.
Kathryn Rubino: I don’t think it’s true. I don’t think that’s true. Well, you have your notes in front of you that —
Joe Patrice: I don’t do that off of notes.
Kathryn Rubino: You usually do.
Joe Patrice: I don’t. I only have the ad reads on notes.
Kathryn Rubino: I am suspect.
Joe Patrice: You can look at my computer if you wish like it’s —
Kathryn Rubino: No thanks. I don’t want to know what’s on there.
Joe Patrice: That’s probably fair.
Kathryn Rubino: Hello and welcome.
Joe Patrice: Yeah, there you go. You’re almost doing it.
Kathryn Rubino: I was about to say the latest episode of the Jabot Podcast.
Joe Patrice: Oh yeah, no, this is not the Jabot though people should always check out the Jabot, the other show that Kathryn hosts. I’m Joe Patrice from Above the Law, that is Kathryn Rubino from Above the Law and we’re here to catch you up on the week of legal shenanigans out there I guess which is the new world of Thinking Like A Lawyer, though the other day I’ll give a shout out once I look up who they are here, not that I don’t know who they are but I don’t remember the exact formal thing here. But the other day I was talking to some folks on twitter who had recorded a podcast that kind of followed sort of the original format of this show way back when Elie and I did it.
Kathryn Rubino: For newer listeners of the podcast was what, Joe?
Joe Patrice: Yeah, they were having a conversation about how the law would operate in fictional settings which in the very early days of this show Elie and I would interview somebody and then at the end they can provide some entirely ridiculous scenario or ask them like what torts might Gandalf have against somebody in any —
like we would ask these sorts of fantasy questions to have people sort out the law as it would apply to these areas and yeah and I saw a version of let’s see here — the legal theory blog had a little write-up that talked about the fictional world of upload and how the law would operate in that. So, check out the legal theory blog. I thought it was cool and they reached out and were like this kind of brings back the original —
Kathryn Rubino: I remember what we used to do.
Joe Patrice: Yeah and I was like oh good people remember that, our old school days.
Kathryn Rubino: More than 200 episodes ago.
Joe Patrice: Yeah. Speaking of old school Justice Scalia was in the news this week which is hard to do when you’ve not been alive for several years but Justice Scalia was in the news as a new note published in the — I believe the University of Virginia Law Review. I’ll have to check that. No, chronicle is kind of the history of a Supreme Court case involving the University of Virginia and in the historical research of this, the author turned up a letter. Should we say like a petulant letter?
Kathryn Rubino: Petulant I think is an accurate descriptor.
Joe Patrice: A real petulant letter from Justice Scalia to the university on the occasion of them thinking of honoring him with an award and him complaining that I believe this school was very unfair to my children who didn’t get in.
Kathryn Rubino: But some of his kids did get in though right?
Joe Patrice: Yeah. Well, I mean, he had nine, right?
Kathryn Rubino: Sure.
Joe Patrice: Was it nine or seven? I can’t remember.
Kathryn Rubino: A bunch.
Joe Patrice: A bunch. A quiver full as one says.
Kathryn Rubino: Slightly different religion but sure.
Joe Patrice: But yeah, so several of them did getting but two of them didn’t and like just the statistics, I mean, they’re not all going to be winners like you’ve used Xerox copy something enough times and a couple of them aren’t going to make it. Well, so two of them don’t get into a prestigious school. He of course sees bias here because he can’t see it anywhere else apparently or couldn’t see it anywhere else.
Kathryn Rubino: That is that is the truly remarkable part. If you look at his jurisprudence, he can’t see discrimination anywhere except when it comes to his own children then it must have been something untoward why his kids didn’t get in but not when historically disenfranchised people don’t get in.
Joe Patrice: Right. In some ways, it kind of unintentionally strikes at the core of what’s going on with anti-affirmative action thinking. It’s that anything that might suggest that — it’s like he even in the letter says I didn’t expect special treatment but the issue is it’s baked into the status quo assumption of normality in his mind that he would be receiving special treatment. It’s not that he didn’t get special treatment it’s that he always had and didn’t here that sort of thing.
Kathryn Rubino: But it’s also that his children must be good enough, smart enough to get in as opposed to just there’s a lot of people who are applying to the University of Virginia and sometimes your people don’t get in. It’s not necessarily anything bad about them but there’s a lot of people they have to make a class that’s balanced and sometimes you don’t get in.
Joe Patrice: These things happen, yeah.
Kathryn Rubino: These things happen but to say oh, well sometimes you don’t get everything you want, something must have gone wrong. There must be something untoward about it. That is ridiculous and listen this is said by people much smarter than me that this is sort of baked into the ideas of whiteness that you assume that if you don’t get exactly what you want it must be something’s gone wrong with the system as opposed to seeing all the privileges and benefits that you have received up to that point.
Joe Patrice: Yeah, I know, absolutely.
Kathryn Rubino: The case that the note was originally about that it was discovered from — Scalia was in fact the deciding vote that he ruled against the University of Virginia.
Joe Patrice: Yeah, and he did not recuse himself despite having just written this pissy letter about how he would never deal with the University of Virginia again, not now not ever. He backtracked on that in the future. Surprisingly, he was not truly committed to his words.
Kathryn Rubino: This is just besides everything else we’ve said about it. It also makes it very clear that we need clear recusal rules when it comes to the Supreme Court as opposed to like well tell us how you really feel.
Joe Patrice: Yeah, absolutely. The only last thing I would say on this introduction before we get into our real topics for the day is we mentioned the University of Virginia. They had a strong run in the finals of our Law Review Contest but we congratulate NYU who actually did win the annual Law Review Contest for us, check it out.
Kathryn Rubino: Listen NYU is always a strong contender in the Above the Law, Law Review Contest but I thought UVA would take it this year. I was really impressed by their entry.
Joe Patrice: They were both very good.
Kathryn Rubino: They were both very good and they both featured Megan Thee Stallion songs as we mentioned I think in a previous cast but I was very impressed by both of them.
Joe Patrice: University of Texas was also in the finals. They had a very good Hamilton bit. I’ll give an extra shout out if we didn’t really write a runners-up column this year but we have a practice of only putting in the finals people — we give one entry per school and Virginia’s second entry would have probably made the finals had they not done the first one. So we’ll give Virginia the credit of winning the constructors championship there. They had two very good teams, very good entries. So, let’s start off by hearing from our friends at Lexicon and then get into some topics.
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Joe Patrice: All right. So we’ve been practicing law over Zoom for —
Kathryn Rubino: Well, we haven’t been practicing. We’ve been writing but —
Joe Patrice: Right, we’ve been given the gift of lawyers practicing over Zoom.
Kathryn Rubino: It hasn’t been great.
Joe Patrice: It is not. In fact, we’ve had a whole competition about this. We had a bracket competition of most epic Zoom fail. It worked out that but that “I’m not a cat thing one” which —
Kathryn Rubino: Was an adorable Zoom fail. There have been I think worse zoom fails but they’re not as funny perhaps.
Joe Patrice: Right. I mean, yeah. I really thought that —
Kathryn Rubino: I think the definition of worse is a personal one and not everyone thinks the same.
Joe Patrice: Yeah, I thought that Jeffrey Tubin had put in a lot of manual labor, the winner but it wasn’t but hey that was us. Well, there was a new Zoom issue that has come up that was not in time for us to be part of this competition. Interestingly, it came from the same courtroom.
Kathryn Rubino: Same courtroom. Yeah, Judge Jeffrey Middleton from Michigan. He actually had a whole section of the bracket that was dedicated to his courtroom I believe in the bracket because this is not the first time something has gone terribly off the wall in his courtroom. So, I think part of the issue is that he puts his courtroom recordings on a website after they happen so it’s a minefield that we can just keep going back to. And now that it’s happened a few times, I think that folks are looking for more problems in the courtroom.
Joe Patrice: It still is weird. I understand that maybe there are problems going on every day that we aren’t seeing.
Kathryn Rubino: I think that has to be true.
Joe Patrice: But I mean, this guy’s track record at this point, statistically, I can’t imagine every court is having it nearly as badly as this guy is.
Kathryn Rubino: I don’t know. So, he was not happy. I watched the full recording of what happened in his courtroom.
Joe Patrice: Well, what happened?
Kathryn Rubino: A defendant logged in to the virtual courtroom with an unfortunate moniker.
Joe Patrice: Okay, I’m sure it was something kind of mild and like not really problematic. What happened?
Kathryn Rubino: It was butt fucker 3000.
Joe Patrice: Oh dear.
Kathryn Rubino: Yikes. Yeah. As I said I watched the clip and the poor defendant looked horrified by everything that happened. He was like “I didn’t type that in.”
Joe Patrice: I typed 2000. No, so okay, yeah?
Kathryn Rubino: No, he said that his sister had set up his account and he had no knowledge of it and obviously it’s problematic not just for using expletives but also because it’s a slur.
Joe Patrice: Yeah, certainly can be and the period interest in it is largely because it is, yeah.
Kathryn Rubino: Well and also just the expletive but yes there’s lots of problems with using that username and it was not great. The judge was very angry, kicked him out of the courtroom was like let’s see if you could figure this out and kicked him out. He logged back in with his actual name so that was a distinct improvement.
Joe Patrice: Who knows what this guy’s actual name was maybe it wasn’t but no.
Kathryn Rubino: Well, it was his name.
Joe Patrice: Bob Hitler and it’s like oh wait a minute. Yeah, go on.
Kathryn Rubino: The judge was much happier and I think the fact that he was so obviously genuinely chagrin over the entire episode. It helped because he pled guilty to some charge, had to pay a fine but the judge said before ending his appearance that you better tell your sister she almost got you thrown in jail. He was about to throw the book at the defendant and send him into jail for contempt of court but he was obviously horrified about everything that happened.
Joe Patrice: Yeah, on the other hand from the sister’s perspective that would have been hilarious.
Kathryn Rubino: Maybe.
Joe Patrice: Look, I just feel like any sister who’s doing this sort of thing to their brother probably would find that hilarious.
Kathryn Rubino: Well, sure but you don’t know when the sister necessarily —
Joe Patrice: I didn’t have a sister but I assume they’re vindictive, I don’t know.
Kathryn Rubino: You have a brother, but the point is that she might have set up his Zoom for like a friend hangout and thought that was funny.
Joe Patrice: I would assume so. I would assume it was not for the purpose of going to court although —
Kathryn Rubino: Although maybe because he seemed to have no idea about user names or anything. He seems genuinely befuddled in the video which, maybe maybe not, who knows.
Joe Patrice: In a lot of ways it’s just a redux of the “I’m not a cat video.” A cute instance where the person didn’t understand how usernames worked and filters, yeah.
Kathryn Rubino: Something like that. Yeah, I know, but he almost got thrown into jail for contempt because of the prank gone awry. Listen, we can kind of bring this around. Make sure if you’re appearing in court or have any important meetings make sure you know the technology that you’re using.
Joe Patrice: Wow see and by the way and I think now that officially means that this podcast is worth at least a CLE credit doing practice pointers.
Kathryn Rubino: Make sure you know how to use whatever, whether it’s Zoom whether it’s Hangouts whether it’s — what was the Microsoft one called?
Joe Patrice: Teams, yeah.
Kathryn Rubino: Whatever it is. I don’t know that one but fortunately I don’t have any meetings coming up on Teams.
Joe Patrice: Microsoft Teams it’s really the best.
Kathryn Rubino: They have the best commercials though.
Joe Patrice: Yeah, but it’s sad that an organization like Microsoft can’t win this battle. You would think that they would be able to do that.
Kathryn Rubino: I guess they didn’t know.
Joe Patrice: I guess Bill probably was concentrating on his marriage at the time.
Kathryn Rubino: Yikes but the point is, we didn’t know back in 2019 or even early 2020 that this was going to be the technology battle that would define probably a decade. But Zoom was there, they were ready.
Joe Patrice: You know what’s interesting is that I didn’t — I think this is true. Didn’t Microsoft buy skype? The platform that theoretically should have won this whole moment in history and didn’t.
Kathryn Rubino: Yeah, they did buy skype. You know what’s funny? I didn’t even know what Zoom was until I went to some legal tech conference and somebody was referencing it in comparison to their product. And so, then I was like “oh, wait what?” And so, then when this all happened I did have some familiarity with some of the tech because of this job because of our sort of legal tech focus.
Joe Patrice: You know where I first learned to Zoom?
Kathryn Rubino: Where?
Joe Patrice: From this show when our producers moved us over to Zoom from Skype and said “this works better” and I was like “I don’t know what this all right.”
Kathryn Rubino: Yeah, I guess the Jabot has also recorded over Zoom so that part of it.
Joe Patrice: I mean, everything now, yeah.
Kathryn Rubino: Well, yeah, but again pre-pandemic but it —
Joe Patrice: Both the Jabot and our show and the Legaltech News, no not in the legal news.
Kathryn Rubino: See you still don’t know the name of it.
Joe Patrice: Well, Legaltech News people are on it but the Legaltech Week Journalists Roundtable, yeah.
Kathryn Rubino: It sounds awkward when you say the name of the show you’re on.
Joe Patrice: See on the other hand —
Kathryn Rubino: It looks like you can actually see in your eyes that you were searching for the name like you’re like eh.
Joe Patrice: In fairness it’s the problem with so many legal technology things going with the legal tech blank naming format. I don’t know. But hey I’ve created engagement among listeners who have now since we’ve talked about it so much. It’s like increasing, like no, it’s like no bad PR. Well, I mean, there’s a little bit of bad PR like if you let your sister go in to your Zoom account. Yeah, so I guess to switch gears, have you wondered how law firms have weathered previous economic downturns that come out stronger on the other side. LexisNexis interaction has released an in-depth global research report confronting the 2020 downturn lessons learned during previous economic crises. Download your free copy at interaction.com/likealawyer to see tips strategies plans and statistics from leaders who have been through this before and how they’ve reached success again. So, speaking of law firms then. Let’s talk about Ropes & Gray, they made an announcement when they come back from the problems with the pandemic that they are not going to be going to a full five-day work week. Let me rephrase. Five-day work week in the office.
Kathryn Rubino: Right, let’s be clear. People will be working at least five days a week.
Joe Patrice: Yeah, that’s very much how that goes. Lawyers have a seven-day work week now so five days in the office versus four days in the office really doesn’t change all that much but it is a sign of a changing trend that we’ve talked about a lot on the website and here. Thanks for adding a lot to that conversation.
Kathryn Rubino: You seemed like you were on a roll I wasn’t sure you needed me.
Joe Patrice: You’re such a generous improv partner. But yes we’ve talked a lot about what’s been going on and the ways in which commercial real estate may well change as these firms see an opportunity to dump office space and transition to a world in which they recognize that more and more lawyers are capable of working remotely and that they’ve made huge investments in the infrastructure of allowing attorneys to work remotely over the last year that they don’t want to go to waste. So, this this may not be the last of these announcements that we see but it is a fairly big one to see a major firm like this make this a public announcement.
Kathryn Rubino: Yeah and I think that we’re seeing a variety of responses to what’s going to happen when we come back but it seems unlikely that requiring five days a week in the office will become the norm. As you’ve mentioned in the past that firms will have made this investment in the online infrastructure and that stuff is not going to go to waste and I think that particularly as we’re seeing a hot lateral market, this is also a way that firms can position themselves relative to their competition. Do you have work from home priority? Are you going to be allowed to work from home? How many days you have to go into the office? Particularly, if there’s folks who are commuting, having to spend that time getting into an office as opposed to just doing the work seen as a real benefit.
Joe Patrice: I definitely think that we’re looking at a — we’re on the cusp of change and it’s interesting to see and it’s going to be fun to see how it turns out. Like the bean counters are always going to be looking to see ways to save money and this could be it to get rid of some space. That said, at the end of the day, you went to law school to be a lawyer not an accountant. Take advantage of Noda, a no cost IOTA management tool that helps solo and small law firms track client funds down to the penny. Enjoy peace of mind with one click reconciliation, automated transaction alerts, and real-time bank data. Visit trustnoda.com/legal to learn more. Terms and conditions may apply. So yeah, I guess the final topic of the day real quick is that the bar exam has —
Kathryn Rubino: I think you’re pretty salty about it.
Joe Patrice: I am.
Kathryn Rubino: As most things related to the bar exam these days.
Joe Patrice: Yeah. So, the bar exam has put out a new — but not bar exam, the NCBE which is the National Conference Bar Examiners, the organization that kind of claims to be a non-profit and makes a bunch of money writing bar exams enforcing and states do them and it’s quite the little monopolistic racket. Anyway, at the end of the day, this organization has people in it who make tests and they are scientists whose job it is to make good tests. That’s all well and good and those folks wrote an article that was published in a journal for the Spring issue that talks about ways to write a test to minimize racial bias which is a laudable goal and makes a lot of sense. I’m totally on board with this thing.
I guess where I get salty on this is it feels as though you could write this article and say look, there are a lot of problems at this world, we’re not going to get into that but here’s how a test could be written to at least minimize the risk that the test itself contributes to this problem. Instead what these folks decided to do because they couldn’t help themselves is write an article that said look, we’re fine, structural racism exists but that’s not really our fault. The reason when our test says that minority law graduates aren’t capable being lawyers it’s because we’ve written the perfect test and they just aren’t capable and so you just got to deal with that. It is an astounding doubling down frankly and one that was wholly unnecessary I don’t think anybody would have — look there are a lot of criticisms of the bar exam on a lot of levels, many of which deal with the way in which minority law graduates I guess are treated by it. At no point do you have to get into that in a story about how to minimize the fact that the test per se is contributing because nobody’s really complaining that like question three is biased on this test. They’re complaining that the existence of the test in the first place as a sliding scale bar on whether or not people get into the profession and therefore build the sort of representation and diversity of representation that then can translate to long-term advances. That’s the problem. A world in which we have because of the bar exam major law schools more or less shrugging when it comes to improving diversity and instead shunting folks into law schools that then don’t necessarily prepare them but take their money anyway and then at the end those folks are left with huge bills and not necessarily able to pass the bar. It’s a compounding problem that the bar exam’s mere existence creates and encourages and their stance on an otherwise hyper-technical article about here’s how we avoid writing bad questions was turned into this apology for — not an apology but the way in which we talk about apology like the more proper uh definition of it. This apology for why it is that they get to exist and perpetuate systemic racism. It was astounding and hilarious. Hilarious in kind of the bad way and that I just read it thinking how did they think they could write this and get away with it.
Kathryn Rubino: Also, because as something else you’ve written about a lot is that you know when you look at diploma privilege jurisdictions like Wisconsin where there is no bar exam, there isn’t some crazy spike in lawyer malfeasance or crimes committed by lawyers or any of the things that the bar exam is supposed to prevent people from doing. It’s supposed to be this gatekeeping kind of minimum competency thing and we’re seeing just fine results in jurisdictions that do not have the bar exam and Wisconsin hasn’t had the bar exam in a very long time. Everything’s fine there so if you’re even part of the problem you need a better justification when the alternative is fantastic.
Joe Patrice: Right, and which the NCBE people know as they are all Wisconsin lawyers who did not take bargains.
Kathryn Rubino: The irony of that never gets old.
Joe Patrice: Yeah, it’s really problematic. Anyway, this is this is a continuing problem with the way in which the NCBE operates. The amount of resources they have are not spent on making the situation better but on continually putting out faux scholarship or white papers that blame everybody but them for the problems that they are deeply complicit in. It’s a PR operation at this point more than anything else of just putting out statements like “oh, we’re sorry that this happens but we are not really involved with it.” Exxon puts out a more heartfelt apology on earth day than these people put out for what’s going on under their nose and we’ve seen it. The numbers keep happening and they just can’t stop.
Kathryn Rubino: Right and they don’t seem to see that the fact that it keeps on happening does not absolve them like that makes it worse. It doesn’t make it better.
Joe Patrice: Yeah. Well, we rocketed through a lot of things today relatively quickly but that is all that we had prepared so I guess we’ll begin the process of wrapping up here. So, thank you for listening to the show. You should be subscribed, you should give it reviews, stars as well as write something that helps with the algorithm and shows engagement. You should listen to the Jabot as we already mentioned. You should listen to the Legaltech Journalists Roundtable if you are interested in legal technology, I’m on that too.
You should listen to the other offerings of the Legal Talk Network. You should be reading Above the Law as always. Follow us on social media. I’m @josephpatrice, she’s @kathryn1, the numeral one and yeah I think we’re done.
Kathryn Rubino: Peace.
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|Published:||May 19, 2021|
|Podcast:||Above the Law - Thinking Like a Lawyer|
|Category:||Legal Entertainment , News & Current Events|
Above the Law - Thinking Like a Lawyer
Above the Law's Joe Patrice and Kathryn Rubino examine everyday topics through the prism of a legal framework.